State v. Clapp , 425 P.3d 605 ( 2018 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 112,842
STATE OF KANSAS,
Appellee,
v.
PHILLIP L. CLAPP,
Appellant.
SYLLABUS BY THE COURT
1.
K.S.A. 2014 Supp. 22-3716(c)(1) sets out a graduated sanctioning scheme for
probationers who violate the terms of their probation, beginning with subsection
(c)(1)(A) which permits the district court to continue the violator on probation, either on
the same or modified release conditions. If the district court chooses to sanction a
probation violator with incarceration, subsections (c)(1)(B) through (E) establish the
permissible progression of sanctions.
2.
Generally, a condition precedent to the district court's statutory authority to revoke
probation and impose the underlying sentence on a probation violator under K.S.A. 2014
Supp. 22-3716(c)(1)(E) is that the violator already had a sanction imposed pursuant to
K.S.A. 2014 Supp. 22-3716(c)(1)(C) or K.S.A. 2014 Supp. 22-3716(c)(1)(D), which
precedent sanctions could only have been imposed after the violator already had a jail
sanction imposed pursuant to K.S.A. 2014 Supp. 22-3716(b)(4)(A), K.S.A. 2014 Supp.
22-3716(b)(4)(B), or K.S.A. 2014 Supp. 22-3716(c)(1)(B). Therefore, generally, a
condition precedent to the district court's statutory authority to revoke probation and
impose the underlying sentence on a probation violator under K.S.A. 2014 Supp. 22-
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3716(c)(1)(E) is that the violator already had a jail sanction imposed pursuant to K.S.A.
2014 Supp. 22-3716(b)(4)(A), K.S.A. 2014 Supp. 22-3716(b)(4)(B), or K.S.A. 2014
Supp. 22-3716(c)(1)(B).
3.
The district court, at any probation violation hearing, can bypass any of the
graduated intermediate sanctions set forth in K.S.A. 2014 Supp. 22-3716(c)(1)(B)
through (D) by invoking the bypass provisions of K.S.A. 2014 Supp. 22-3716(c)(9). To
invoke the bypass provisions of K.S.A. 2014 Supp. 22-3716(c)(9), the district court must
find and set forth with particularity the reasons for finding that the safety of members of
the public will be jeopardized or that the welfare of the offender will not be served by the
bypassed intermediate sanction.
4.
The particularity requirement of K.S.A. 2014 Supp. 22-3716(c)(9) is not met when
an appellate court must imply the district court's reasons for finding that the safety of
members of the public will be jeopardized or that the welfare of the offender will not be
served by the bypassed intermediate sanction. The district court's reasons must be distinct
rather than general, with exactitude of detail.
Review of the judgment of the Court of Appeals in an unpublished opinion filed March 25, 2016.
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed September 7, 2018.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed and the case is remanded with directions.
Caroline M. Zuschek, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.
Daniel D. Gilligan, assistant district attorney, argued the cause, and Keith E. Schroeder, district
attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
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The opinion of the court was delivered by
JOHNSON, J.: Phillip L. Clapp petitions this court for review of the Court of
Appeals' decision affirming the district court's revocation of his probation and order to
serve his underlying prison sentence. Clapp argues his sentence is illegal because it fails
to comply with K.S.A. 2014 Supp. 22-3716's authorized dispositions following a
probation violation. Clapp alternatively argues that even if his sentence is not illegal, the
district court erred by revoking his probation for a second probation violation because it
failed to make the requisite findings to bypass intermediate probation violation sanctions.
FACTUAL AND PROCEDURAL OVERVIEW
Pursuant to a plea agreement, Clapp pled guilty as charged to 13 drug, alcohol,
and weapons charges and the State agreed not to oppose a downward dispositional
departure. The district court followed the plea agreement, sentenced Clapp to a
controlling sentence of 118 months' imprisonment, and granted a dispositional departure
to 36 months' probation. At the time of the sentencing hearing, drug treatment had not
been arranged; therefore the district court ordered a 60-day jail sanction, to be suspended
when Clapp went to inpatient drug treatment. Clapp eventually completed inpatient drug
treatment and was released to outpatient treatment.
On January 27, 2014, the State moved to revoke Clapp's probation. At the
probation violation hearing, Clapp stipulated to ingesting methamphetamine, testing
positive for methamphetamine on 2 occasions, failing to report on 10 occasions,
unsuccessful discharge from outpatient treatment, refusing to reenter outpatient
treatment, unsuccessful discharge from the job club for failing to attend, failing to
complete a job search and obtain employment, failing to complete community service,
failing to attend sanctioned peer support groups, refusing to attend recommended mental
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health treatment, and leaving the county without permission. The district court found
Clapp violated his probation, revoked Clapp's probation, and heard argument on
disposition. The State argued Clapp had his chance at probation and should be ordered to
serve the remainder of his prison sentence. Defense counsel asked the district court to
follow the recommendation of Clapp's intensive supervision officer (ISO) by ordering
Clapp to serve a 180-day sanction in the Department of Corrections and reinstating
probation with a strong condition that he get a mental health evaluation and medication.
The district court acknowledged the applicability of H.B. 2170, a 2013 bill which
substantially amended K.S.A. 22-3716, the statute enumerating procedures for alleging
and proving violations of probation and the authorized dispositions following a probation
violation. See L. 2013, ch. 76, § 5, effective July 1, 2013. Those amendments created a
graduated sanctioning scheme for probation violators, under which first-time and second-
time probation violators are normally sanctioned with intermediate periods of
incarceration, rather than having their probations completely revoked. K.S.A. 2013 Supp.
22-3716(c)(1); K.S.A. 2014 Supp. 22-3716(c)(1). But the district court retains the
authority to revoke probation and impose the underlying sentence, bypassing the
imposition of intermediate sanctions even for a first-time violator, if the court finds: the
probationer committed a new felony or misdemeanor, the probationer absconded from
supervision, or "that the safety of members of the public will be jeopardized or that the
welfare of the offender will not be served by such [intermediate] sanction." K.S.A. 2013
Supp. 22-3716(c)(8)-(9); K.S.A. 2014 Supp. 22-3716(c)(8)-(9).
For Clapp's first violation, the applicable intermediate sanction was a short stay in
jail. K.S.A. 2013 Supp. 22-3716(c)(1)(B). But by following the ISO's recommendation
for a 180-day prison sanction, the district court imposed the intermediate sanction that
should be applicable to a second- or third-time violator. See K.S.A. 2013 Supp. 22-
3716(c)(1)(D). Then, when a second motion to revoke probation was filed in August
2014, the State sought to revoke Clapp's probation and impose the underlying sentence,
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pursuant to K.S.A. 2013 Supp. 22-3716(c)(1)(E). The State argued that Clapp had already
received a 180-day prison sanction, which is the most severe intermediate sanction, so
that the next step in the progression is to execute upon the original sentence. Moreover,
the State pointed to Clapp's weapons convictions to make the point that "[h]e's not
necessarily a non dangerous person in the community."
In arguing against revocation, defense counsel noted that Clapp's underlying
sentence made him "a little more guarded with his ability to be honest with his ISO," but
that Clapp's main issue was drug use. Counsel pointed out that Clapp was in outpatient
treatment and would graduate in two weeks; he was participating in peer-to-peer
counseling; he had a job; he had not absconded; and he had not committed a new crime.
The district court agreed that Clapp had not committed a new crime, had not
absconded, had a job, and was still in treatment. Nevertheless, the court revoked Clapp's
probation and imposed the underlying sentence, after commenting on the convictions
leading to Clapp's probation, his criminal history, and his dishonesty with his ISO. The
district court specifically told Clapp that it did not feel that Clapp valued Community
Corrections as a way to help him change how he thought and how he lived his life.
Clapp appealed to the Court of Appeals raising two issues. First, he argued the
district court's decision to revoke his probation constituted an illegal sentence. Second, he
argued in the alternative that the district court erred in revoking his probation without
making the requisite statutory findings under K.S.A. 2014 Supp. 22-3716(c)(9) to bypass
intermediate sanctions.
The Court of Appeals rejected Clapp's appeal, first holding that Clapp's sentence
upon probation revocation was not an illegal sentence under K.S.A. 22-3504(1). State v.
Clapp, No. 112,842, 2016 WL 1169418, at *3-4 (Kan. App. 2016) (unpublished opinion.
Next, the panel held that K.S.A. 2014 Supp. 22-3716 does not require a district court to
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make statutory findings to bypass intermediate sanctions when a violator has already
served a 180-day intermediate sanction. 2016 WL 1169418, at *4. Finally, the panel held
that, even if statutory findings to bypass intermediate sanctions were required in this case,
the district court had met the particularity requirement under K.S.A. 2014 Supp. 22-
3716(c)(9) to revoke Clapp's probation based upon public safety. 2016 WL 1169418, at
*5.
This court granted Clapp's petition for review, in which he argues that the district
court misapplied the 2013 and 2014 versions of the probation revocation statute, K.S.A.
22-3716. He claims that the district court's noncompliance with the applicable provisions
of K.S.A. 22-3716 rendered the imposition of his underlying sentence an illegal sentence,
or, in the alternative, the statutory violations require a revised disposition. Given that this
is Clapp's direct appeal of his probation revocation, rather than an appeal of an after-the-
fact motion to correct an illegal sentence, we proceed directly to the claim that the district
court failed to follow the applicable statutory provisions governing probation revocation.
PROBATION VIOLATION SANCTIONS UNDER THE 2013 AND 2014 VERSIONS OF
K.S.A. 22-3716
Clapp does not dispute that he violated the terms of his probation. Instead, he
argues that the district court erred in applying the intermediate sanctions provisions to his
second probation violation, and that the Court of Appeals erred in finding that the district
court had made the particularized findings required to permit it to bypass intermediate
sanctions under K.S.A. 2014 Supp. 22-3716(c)(9). We agree.
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Standard of Review
Analyzing Clapp's statutory error argument requires statutory interpretation, a
question of law subject to unlimited review. State v. Skolaut, 286 Kan. 219, 227, 182 P.3d
1231 (2008).
Preservation
In the Court of Appeals, Clapp argued that he preserved his statutory error issue
for review and even if the issue was not preserved, he met exceptions to the general rule
that an issue cannot be raised for the first time on appeal. See State v. Phillips, 299 Kan.
479, 493, 325 P.3d 1095 (2014) (stating exceptions to the general rule that a theory not
asserted before the district court cannot be raised for the first time on appeal). Before
addressing the merits of Clapp's argument, the Court of Appeals held that the State had
not challenged Clapp's failure to raise this issue in the district court. Clapp, 2016 WL
1169418, at *4. The State did not cross-petition the Court of Appeals' decision to reach
the merits of Clapp's argument, did not reply to the petition for review, and did not file a
supplemental brief to this court; therefore, we need not determine whether the panel erred
in addressing the merits of Clapp's argument. See State v. Keenan, 304 Kan. 986, 993,
377 P.3d 439 (2016) ("Because the State did not cross-petition to challenge the Court of
Appeals' preservation ruling in favor of [the defendant], we will not consider whether the
panel erred on this point."); see also State v. Davey, 306 Kan. 814, 819, 397 P.3d 1190(2017) ("[T]he State has not challenged—either through a cross-petition for review or in
its supplemental brief to this court—the Court of Appeals' implied ruling in favor of [the
defendant] on the State's nonpreservation claim.").
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Analysis
Prior to July 1, 2013, a district court had broad discretion to enter a variety of
sanctions once it determined that a defendant had violated the terms of probation. See
K.S.A. 22-3716(b) ("Except as otherwise provided, if the violation is established, the
court may continue or revoke the probation, assignment to a community correctional
services program, suspension of sentence or nonprison sanction and may require the
defendant to serve the sentence imposed, or any lesser sentence . . . ."); State v. Graham,
272 Kan. 2, 4, 30 P.3d 310 (2001) ("Once there has been evidence of a violation of the
conditions on which probation was granted, revocation is in the sound discretion of the
district court.").
Effective July 1, 2013, the Legislature substantially amended K.S.A. 22-3716,
eliminating much of the district court's discretion to sanction a probation violator with
incarceration when the original crime of conviction was a felony. Since 2013, the
Legislature has amended K.S.A. 22-3716 in 2014, 2016, 2017, and 2018. The 2013 and
2014 versions of the statute control this appeal, as Clapp's first violations took place
under the 2013 version of the statute and the second took place under the 2014 version.
The 2014 amendments clearly state the Legislature's intent that the violation sanctions in
the statute apply to any violation of conditions of probation occurring after July 1, 2013.
K.S.A. 2014 Supp. 22-3716(c)(12).
The other variations between the 2013 and 2014 versions of K.S.A. 22-3716 do
not impact the outcome of Clapp's appeal; therefore, we will hereafter refer to the
relevant portions of the 2014 statute, to-wit:
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"(b)(1) Upon arrest and detention pursuant to subsection (a), the court services
officer or community correctional services officer shall immediately notify the court and
shall submit in writing a report showing in what manner the defendant has violated the
conditions of release or assignment or a nonprison sanction.
....
(3)(A) Except as otherwise provided, if the original crime of conviction was a
felony, other than a felony specified in subsection (i) of K.S.A. 2014 Supp. 21-6804, and
amendments thereto, and a violation is established, the court may impose the violation
sanctions as provided in subsection (c)(1).
....
(4) Except as otherwise provided, if the defendant waives the right to a hearing
and the sentencing court has not specifically withheld the authority from court services or
community correctional services to impose sanctions, the following sanctions may be
imposed without further order of the court:
(A) If the defendant was on probation at the time of the violation, the defendant's
supervising court services officer, with the concurrence of the chief court services officer,
may impose an intermediate sanction of confinement in a county jail, to be imposed as a
two-day or three-day consecutive period. The total of all such sanctions imposed pursuant
to this subparagraph and subsections (b)(4)(B) and (c)(1)(B) shall not exceed 18 total
days during the term of supervision; and
(B) if the defendant was assigned to a community correctional services program
at the time of the violation, the defendant's community corrections officer, with the
concurrence of the community corrections director, may impose an intermediate sanction
of confinement in a county jail, to be imposed as a two-day or three-day consecutive
period. The total of all such sanctions imposed pursuant to this subparagraph and
subsections (b)(4)(A) and (c)(1)(B) shall not exceed 18 total days during the term of
supervision.
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"(c)(1) Except as otherwise provided, if the original crime of conviction was a
felony, other than a felony specified in subsection (i) of K.S.A. 2014 Supp. 21-6804, and
amendments thereto, and a violation is established, the court may impose the following
sanctions:
(A) Continuation or modification of the release conditions of the probation,
assignment to a community correctional services program, suspension of sentence or
nonprison sanction;
(B) continuation or modification of the release conditions of the probation,
assignment to a community correctional services program, suspension of sentence or
nonprison sanction and an intermediate sanction of confinement in a county jail to be
imposed as a two-day or three-day consecutive period. The total of all such sanctions
imposed pursuant to this subparagraph and subsections (b)(4)(A) and (b)(4)(B) shall not
exceed 18 total days during the term of supervision;
(C) if the violator already had at least one intermediate sanction imposed
pursuant to subsection (b)(4)(A), (b)(4)(B) or (c)(1)(B) related to the crime for which the
original supervision was imposed, continuation or modification of the release conditions
of the probation, assignment to a community correctional services program, suspension
of sentence or nonprison sanction and remanding the defendant to the custody of the
secretary of corrections for a period of 120 days, subject to a reduction of up to 60 days
in the discretion of the secretary. This sanction shall not be imposed more than once
during the term of supervision. The sanction imposed pursuant to this subparagraph shall
begin upon pronouncement by the court and shall not be served by prior confinement
credit, except as provided in subsection (c)(7);
(D) if the violator already had a sanction imposed pursuant to subsection
(b)(4)(A), (b)(4)(B), (c)(1)(B) or (c)(1)(C) related to the crime for which the original
supervision was imposed, continuation or modification of the release conditions of the
probation, assignment to a community correctional services program, suspension of
sentence or nonprison sanction and remanding the defendant to the custody of the
secretary of corrections for a period of 180 days, subject to a reduction of up to 90 days
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in the discretion of the secretary. This sanction shall not be imposed more than once
during the term of supervision. The sanction imposed pursuant to this subparagraph shall
begin upon pronouncement by the court and shall not be served by prior confinement
credit, except as provided in subsection (c)(7); or
(E) if the violator already had a sanction imposed pursuant to subsection
(c)(1)(C) or (c)(1)(D) related to the crime for which the original supervision was
imposed, revocation of the probation, assignment to a community corrections services
program, suspension of sentence or nonprison sanction and requiring such violator to
serve the sentence imposed, or any lesser sentence and, if imposition of sentence was
suspended, imposition of any sentence which might originally have been imposed.
....
(8) If the offender commits a new felony or misdemeanor or absconds from
supervision while the offender is on probation, assignment to a community correctional
services program, suspension of sentence or nonprison sanction, the court may revoke the
probation, assignment to a community correctional services program, suspension of
sentence or nonprison sanction of an offender pursuant to subsection (c)(1)(E) without
having previously imposed a sanction pursuant to subsection (c)(1)(B), (c)(1)(C) or
(c)(1)(D).
"(9) The court may revoke the probation, assignment to a community
correctional services program, suspension of sentence or nonprison sanction of an
offender pursuant to subsection (c)(1)(E) without having previously imposed a sanction
pursuant to subsection (c)(1)(B), (c)(1)(C) or (c)(1)(D) if the court finds and sets forth
with particularity the reasons for finding that the safety of members of the public will be
jeopardized or that the welfare of the offender will not be served by such sanction."
K.S.A. 2014 Supp. 22-3716.
K.S.A. 2014 Supp. 22-3716(c)(1) sets out a graduated sanctioning scheme for
probationers who violate the terms of their probation, beginning with subsection
(c)(1)(A) which permits the district court to continue the violator on probation, either on
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the same or modified release conditions. If the district court chooses to sanction a
probation violator with incarceration, subsections (c)(1)(B) through (E) establish the
permissible progression of sanctions.
Subsection (c)(1)(B) provides the first step in the graduated intermediate sanctions
scheme. The court can order the violator to serve two-day or three-day stints in jail, with
an outside limit of 18 days of total confinement in jail. This jail sanction might be
imposed by court services or community correctional services under subsection (b)(4), in
addition to being available for the district court to impose.
If a probation violator has already had at least one jail sanction under (b)(4) or
(c)(1)(B), the court can impose the next step: sending the violator to prison for 120 days,
subject to a discretionary reduction of up to 60 days by the secretary of corrections.
K.S.A. 2014 Supp. 22-3716(c)(1)(C). The court can use this sanction step only once
during the probation term.
Next, if a probation violator has already had a jail sanction imposed under
subsection (b)(4) or (c)(1)(B), or a 120-day prison sanction imposed under subsection
(c)(1)(C), the court can send the violator to prison for 180 days, subject to the secretary's
discretion to reduce the term up to 90 days. K.S.A. 2014 Supp. 22-3716(c)(1)(D). Again,
this sanction shall not be imposed more than once during the term of supervision.
Finally, after a violator has been sanctioned with a stint in prison under subsection
(c)(1)(C) or (c)(1)(D), the final step is to revoke the probation and require the violator to
serve the original underlying sentence or any lesser sentence. K.S.A. 2014 Supp. 22-
3716(c)(1)(E).
As suggested above, the amended probation revocation statute also sets forth
certain circumstances under which a district court may bypass the graduated intermediate
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sanctions steps and proceed directly to the revocation described in subsection (c)(1)(E).
The bypass circumstances in K.S.A. 2014 Supp. 22-3716(c)(8) are: (1) the violator has
committed a new misdemeanor or felony, or (2) the violator has absconded from
supervision. The bypass circumstances in K.S.A. 2014 Supp. 22-3716(c)(9) exist "if the
court finds and sets forth with particularity the reasons for finding that the safety of
members of the public will be jeopardized or that the welfare of the offender will not be
served by [the intermediate] sanction."
Clapp's statutory error argument relies upon the graduated nature of the
intermediate sanctions scheme in K.S.A. 2014 Supp. 22-3716(c). Clapp points out that
for his first probation violation, the only intermediate incarceration sanction the district
court was authorized to impose was the short-term jail sanction described in K.S.A. 2014
Supp. 22-3716(c)(1)(B). For a second violation, the district court could have utilized
either the 120-day prison sanction of K.S.A. 2014 Supp. 22-3716(c)(1)(C) or the 180-day
prison sanction of K.S.A. 2014 Supp. 22-3716(c)(1)(D). Then, the district court's
authority to revoke Clapp's probation under K.S.A. 2014 Supp. 22-3716(c)(1)(E) was
conditioned upon the court having previously imposed at least one of the prison sanctions
for a second or third violation, which in turn was conditioned upon the court's first having
previously imposed a jail sanction. Consequently, the district court's revocation of
Clapp's probation under subsection (c)(1)(E) for a second probation violation did not
conform with the intermediate sanctions provisions, and the revocation can only stand if
the district court made the requisite findings to bypass the intermediate sanctions. We
agree.
The Court of Appeals held that findings were unnecessary when a probation
violator has already served a 180-day prison sanction. Presumably, that holding was
based on interpreting K.S.A. 2014 Supp. 22-3716(c)(1)(E) in isolation to mean that
revocation is authorized any time a "violator already had a sanction imposed pursuant to
subsection . . . (c)(1)(D)," regardless of whether that (c)(1)(D) sanction was lawful. We
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disagree. K.S.A. 2014 Supp. 22-3716(c)(1)(E) must be interpreted in pari materia with
the other provisions of the graduated sanction scheme. See State v. Coman, 294 Kan. 84,
93, 273 P.3d 701 (2012) (appellate courts must consider various provisions of an act in
pari materia with a view of reconciling and bringing the provisions into workable
harmony). A sanction imposed "pursuant to subsection . . . (c)(1)(D)" would, by the terms
of that provision, require that the "violator already had a sanction imposed pursuant to
subsection (b)(4)(A), (b)(4)(B), (c)(1)(B) or (c)(1)(C)." K.S.A. 2014 Supp. 22-
3716(c)(1)(D). Permitting the district court to skip steps in the graduated intermediate
sanctions scheme would defeat the purpose of the legislation. See State v. Clutchey, No.
114,566, 2016 WL 7178260, at *2 (Kan. App. 2016) (unpublished opinion) (noting
"strong legislative purpose expressed in K.S.A. 2015 Supp. 22-3716[c] for reform of
probation and sentencing standards with an eye toward alleviating both prison
overcrowding and extended incarceration of defendants amenable to lesser sanctions").
To summarize, absent utilization of a statutory bypass provision, a condition
precedent to the district court's statutory authority to revoke probation and impose the
underlying sentence on a probation violator under K.S.A. 2014 Supp. 22-3716(c)(1)(E) is
that the violator already had a sanction imposed pursuant to K.S.A. 2014 Supp. 22-
3716(c)(1)(C) or K.S.A. 2014 Supp. 22-3716(c)(1)(D), which precedent sanctions could
only have been imposed after the violator already had a jail sanction imposed pursuant to
K.S.A. 2014 Supp. 22-3716(b)(4)(A), K.S.A. 2014 Supp. 22-3716(b)(4)(B), or K.S.A.
2014 Supp. 22-3716(c)(1)(B). Therefore, a condition precedent to the district court's
statutory authority to revoke probation and impose the underlying sentence on a
probation violator under K.S.A. 2014 Supp. 22-3716(c)(1)(E) is that the violator already
had a jail sanction imposed pursuant to K.S.A. 2014 Supp. 22-3716(b)(4)(A), K.S.A.
2014 Supp. 22-3716(b)(4)(B), or K.S.A. 2014 Supp. 22-3716(c)(1)(B).
The State argues that Clapp's 180-day prison sanction was proper because it was
preceded by a jail sanction, i.e., the 60 days ordered at the sentencing hearing. But, of
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course, that jail time was ordered as part of Clapp's original sentence, not as an
intermediate sanction for a probation violation. That original jail time has nothing to do
with the question of whether the district court complied with the probation revocation
provisions of K.S.A. 2014 Supp. 22-3716.
The State also attempts to invoke two procedural doctrines to avoid any
consequences for its recommending the unlawful prison sanction. First, it argues that
Clapp has completed serving the 180-day sanction and any error in imposing it is now
moot. But Clapp's claim in this appeal is that the subsequent revocation of his probation
was statutorily infirm. The propriety of the district court's imposition of the 180-day
prison sanction is germane to the question of whether the district court had authority
under K.S.A. 2014 Supp. 22-3716(c)(1)(E) to revoke probation without using a bypass
provision.
Second, the State contends that Clapp invited any error by the district court
because his attorney urged the district court to accept the ISO's 180-day prison sanction
recommendation, in lieu of revoking his probation. Certainly, a direct appeal from a
second probation violation hearing is not a proper vehicle to collaterally attack the
sanction imposed at a previous probation revocation hearing. But Clapp is not attacking
the 180-day sanction; rather, he is attacking the revocation of his probation upon the
State's second motion to revoke. Granted, the district court's first error was imposing the
180-day prison sanction on a first-time violator. But that error did not imbue the district
court with the discretion to compound the error at the second revocation hearing. And
Clapp certainly did not invite the second error.
In short, pursuant to the statutory provisions of K.S.A. 2014 Supp. 22-3716(c)(1),
viewed as a whole, the district court did not have authority to revoke Clapp's probation
and impose his underlying sentence for a second probation violation unless the district
court utilized a statutory bypass provision. Given the record at that point in the
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proceedings, the only avenue available to the district court to revoke Clapp's probation
was the bypass provision in K.S.A. 2014 Supp. 22-3716(c)(9). We turn now to the panel's
ruling on that provision's applicability here.
To reiterate, the district court, at any probation violation hearing, can bypass any
intermediate sanctions by invoking the bypass provisions of K.S.A. 2014 Supp. 22-
3716(c)(9). Such an invocation requires the district court to "find[] and set[] forth with
particularity the reasons for finding that the safety of members of the public will be
jeopardized or that the welfare of the offender will not be served by [the bypassed
intermediate] sanction." K.S.A. 2014 Supp. 22-3716(c)(9). The Court of Appeals found
compliance with that bypass provision in the district judge's soliloquy, to-wit:
"'Well, Mr. Clapp, the real question I guess is whether or not I can with a straight face ask
Community Corrections to continue to try to supervise you . . . . [You have] a dangerous
criminal history. You got three weapons convictions in this case. Previously you have an
unlawful discharge of a firearm, a criminal use of a weapon, criminal possession of a
firearm, criminal possession of a firearm . . . so that makes . . . seven weapon
[convictions] and you're convicted of basically being a drug dealer, and then you haven't
been honest with your ISO and it seems to me at age 37 you should have figured out that
that is what we call in Drug Court a proximal goal.
....
"'. . . I wish that you had taken and cherished your chance at Community
Corrections but I really just get the feeling that you thought Community Corrections was
something you were going to try to get through so that you could then go live your life
the way that you wanted to. I never and I have today still not got the feeling that you
actually valued Community Corrections as a way that could have some help in changing
how you think, how you live your life so that you can be a productive law abiding
citizen.'" Clapp, 2016 WL 1169418, at *3.
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The Court of Appeals held these findings, in combination with the district court's
findings at Clapp's first probation violation hearing, met the particularity requirement
under subsection (c)(9). 2016 WL 1169418, at *3, 5. Pointedly, the panel cited no
caselaw for the notion that a district court's findings at one probation violation hearing
could be used to fulfill a findings-with-particularity requirement in a subsequent hearing
on another probation violation. Nevertheless, we discern that the district court did not
rely on K.S.A. 2014 Supp. 22-3716(c)(9) and most certainly did not meet the particularity
requirement.
In revoking Clapp's probation and imposing his underlying sentence, the district
court did not mention K.S.A. 2014 Supp. 22-3716(c)(9), nor did it make any explicit
findings regarding how imposing an intermediate sanction would jeopardize the safety of
the public or be contrary to Clapp's welfare. Any suggestion that the district court was
implicitly relying on the bypass provision of subsection (c)(9) when revoking Clapp's
probation at the hearing is belied by the journal entry. That document contains a
preprinted check box so that the court may indicate: "Court revoked pursuant to K.S.A.
2013 Supp. 22-3716(c)(8) or (c)(9)—state reasons in comment box." The district judge
did not check that box and made no other comments in the journal entry that could be
construed as reliance on subsection (c)(9).
Even if we were to agree with the panel that the district court's intention was to use
the bypass provision of subsection (c)(9), the record reflects a failure to set forth the
reasons an intermediate sanction would have been a public safety issue or contrary to
Clapp's welfare. Cf. State v. Clutchey, No. 114,566, 2016 WL 7178260, at *3 (Kan. App.
2016) (unpublished opinion) ("The district court did not appear to have considered
K.S.A. 2015 Supp. 22-3716[c][9] in ordering Clutchey to prison. Even if that appearance
were inaccurate, the district court did not state 'with particularity the reasons' Clutchey's
welfare would be furthered by his imprisonment. . . . An order lacking the required
particularity must be reversed."). In State v. Miller, 32 Kan. App. 2d 1099, 1102-03, 95
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P.3d 127 (2004), the panel reviewed Court of Appeals' cases construing a requirement of
particularized findings in other provisions of the criminal code and concluded that "the
relevant cases make it clear that an implicit determination is not enough when
particularized findings are required by statute." Instead, "'[w]hen something is to be set
forth with particularity, it must be distinct rather than general, with exactitude of detail,
especially in description or stated with attention to or concern with details.'" Miller, 32
Kan. App. 2d at 1102 (quoting State v. Huskey, 17 Kan. App. 2d 237, Syl. ¶ 2, 834 P.2d
1371 [1992]).
Later, in State v. McFeeters, 52 Kan. App. 2d 45, 48-49, 362 P.3d 603 (2015), the
Court of Appeals applied the reasoning in Miller to the particularity requirement set out
in K.S.A. 2014 Supp. 22-3716(c)(9). There, instead of ordering an intermediate sanction,
the district court revoked probation and ordered McFeeters to serve his prison sentence,
reasoning McFeeters' case was a drug case; McFeeters continued to use drugs; he failed
to attend drug treatment; he failed to report; and he had a new municipal court charge.
The McFeeters panel held the district court's findings did not meet the particularity
requirement to invoke the exception under subsection (c)(9) as the comments were akin
to the reasoning historically relied upon by courts in exercising their broad discretion to
revoke probation under pre-2013 amendment law. 52 Kan. App. 2d at 49 (citing State v.
Lane, No. 111,110, 2015 WL 802739, at *4 [Kan. App. 2015] [unpublished opinion]).
Again, implicit findings were insufficient under subsection (c)(9).
Similar to the district court's remarks in McFeeters, we discern the district court's
remarks to Clapp were akin to the reasoning historically relied upon by district courts in
exercising unfettered discretion to revoke probation for any violation and impose an
underlying prison sentence. But we now have a new probation revocation scheme in this
State, and we hold that the district court failed to comply with that new law.
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At oral argument before this court, the State argued that a remand would be futile,
because the outcome of this case would be the same, i.e., on remand the district court will
simply make the required statutory findings to bypass intermediate sanctions. Although
that outcome is possible, such a possibility does not relieve the district court of its duty to
apply the law in conformity with the legislative enactments in this State. Moreover, if the
district court does find and set forth, with particularity, its reasons for finding that public
safety will be jeopardized or the defendant's welfare will not be furthered with an
intermediate sanction, the defendant can seek to have the efficacy of those findings
reviewed by an appellate court.
Accordingly, we reverse and remand for a new dispositional hearing to comply
with K.S.A. 2014 Supp. 22-3716. At the hearing, the only issue before the court is the
appropriate disposition, as Clapp did not challenge the district court's finding that he
violated his probation. Accordingly, under the 2014 version of K.S.A. 22-3716 applicable
to this disposition, the court may either impose an appropriate graduated sanction under
K.S.A. 2014 Supp. 22-3716(c)(1)(A)-(D) or, in the alternative, may set forth with
particularity its reasons for bypassing intermediate sanction under K.S.A. 2014 Supp. 22-
3716(c)(9), prior to ordering Clapp to serve his underlying sentence.
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